In a recent article, I wrote about a small group of people who were enjoying their 1st Amendment right to peacefully protest. They chose as their venue, the overpass of a highway in St. Charles, MO. There, they held signs indicating their desire to see Mr. Obama impeached.
As the video opens, the police are already there. Six to eight patrol cars were parked along the curb, with lights flashing. There were just as many individual officers all standing around a handful of protestors. You can read that article and watch the included video for more specifics regarding the situation. I mentioned at the end of that article that I would do more research to determine – if I could – what our rights are and if whether or not what the police did was legal.
In researching the issue, I have learned a number of things that are important for all Americans to know. I have gleaned information from a number of ACLU sites, as well as other sites that delve into the legalities involved in peaceful protesting.
First of all, community codes and ordinances do not overrule the United States Constitution. “The Constitution supersedes local ordinances that are being used to OBSTRUCT 1st Amendment Rights.” As you’ll note in the video, two protesters are arrested after they refuse to leave the overpass. The reason given by the Highway Patrol officers to the protesters is that their protest could create a public safety hazard. What could happen enters into the area of Minority Report. Law enforcement officers (LEOs) do not have the right to make a decision like that based solely on what might happen, unless there is a surety that it will happen.
For instance, I cannot stand in the middle of the road holding a sign as a peaceful means of protest. In doing so, I am breaking several laws. I am also creating a safety hazard by blocking part of the street, impeding the flow of traffic and in general, endangering myself as well as others. In such a situation, a LEO has every right to direct me out of the road and onto a public sidewalk or other area where I am no longer breaking the law.
In this particular case, the protesters were actually on the sidewalk of an overpass. The sidewalk is a public throughway and as long as they were not blocking the sidewalk so that other pedestrians could not get by (or had to step into the road to do so), they were fine.
Another issue that stems from this is the arrest itself. Because one of the protesters refused to leave, one Highway Patrol Officer arrested the protector. You’ll note that the protester kept his hands on his chest. At that point, the officer decided to take the man to the ground, where he cuffed him, then stood him up. Some argue that the protester was resisting arrest. The problem was that it was an unlawful arrest in the first place and because of that, it appears that the SCOTUS has ruled that we, the people, have every right to resist an unlawful arrest.
“‘When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.’ Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.”
“‘An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.’ (State v. Robinson, 145 ME. 77, 72 ATL. 260).”
“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self-defense.’ (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).”
Moreover, besides having the right to resist an unlawful arrest,
“‘Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.’ Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529.”
What that means is clear. If you are being falsely arrested, you have the right to resist and if you wind up killing the arresting officer in the process, you were within your rights. Sounds harsh, doesn’t it? This is based on the actual ruling of a court case.
A person who is being falsely arrested has a right to resist. It is incumbent upon all LEOs to know the law. They cannot simply dictate to a person that they must stop their peaceful protest and leave, thereby abrogating that person’s 1st Amendment right. That is against the law. A person who is unlawfully arrested in that situation not only has the right to resist, but any problems that result from it are really the fault of the arresting officer(s).
It goes without saying that when a peaceful protest turns violent or deadly, police have the right to intervene at that point, for the safety of all concerned. They do not have the right to simply interfere with a peaceful protest because of what they think it might become.
There are a number of things to keep in mind when peacefully protesting.
“During the actual protest is it important to not block roadways or private entrances. Entering onto private property without permission or stopping the flow of pedestrian or vehicle traffic are other issues that can land protesters in jail. Time of day is also an issue to consider. Leading a march on a neighborhood sidewalk at 3am with speakerphones is obviously not acceptable. But besides place, time and permission, it is important to remember behavior when protesting as well.”
Again, the people in the video in my previous article were on public property. They were not blocking the sidewalk. The Highway Patrol likely created more of a hazard with eight patrol cars and just as many police officers as anything that the protestors did.
The protestors were also not inciting violence. They were simply making a statement that included their political opinion. My question of course is whether the same thing would have happened if the protestors were supporting Obama, rather than coming out against him. We wouldn’t know that unless it occurred and we could then see the outcome.
Because of the fact that it seems the federal government wants to crack down on our rights, it is extremely important that people know what our rights are and how to protect them. Police cannot come in and arbitrarily decide that a peaceful protest needs to be shut down, yet this is increasingly happening.
By the way, I contacted the Highway Patrol in MO and got the run around. I was initially transferred to the Professional Standards Department where I left a message. I then called the 800 number listed in the previous article and was told I wanted to talk with someone in Public Information at the main number. I called that number and they tried to transfer me to Professional Standards. I told them I already left a message and they placed me on hold…for a while. I was then transferred to a Lt. Jolly, who was actually very helpful. He told me that a press release about the incident was going to be up soon and he also mentioned that once the video hit, he and other investigators were busy fielding phone calls from concerned citizens throughout the day.
Once that press release is posted, we will note it here.
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